laurent martin mpeka vs betha john gita 2021 tzhc 9047 29 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES salaam district REGISTRY) AT MOROGORO MISCELLANEOUS UNO CASE APPLICATION NO.285 OF 2021 (Originating from Land Appeai No. 99 of 2014, High Court of Tanzania, Land Division - Dar es Saiaam - Before Ndika, J.(As he then was)) LAURENT MARTIN MPEKA APPLICANT VERSUS BETHAJOHN GITA RESPONDENT RULING Date of last order: 11.11.2021 Date of ruling; 29.11.2021 X M.J. CHABA,J. vN This applicatio^s%^ic^erecl history. The applicant, Laurent Martin Mpeka accoriim^o^e^ourt records has been attempting to file different^plications for^'^ieast five times and ail have been ended to be stmck^out for<^'eing incompetent. In a bid to pursuit for what he door seekin^/drN^court's mercy through her discretionary powers to access such a right. Indeed, the applicant has filed the instant application seeking for enlargement of time within which to file an application for leave to appeai to the Court of Appeal subject to an order of the court dated 8«^ November, 2018, where an order for leave to appeal out of time was granted by this Court via Misc. Land Application No. 988 of 2017 Page 1 of 11 (De Mello, J. - As she then was). The application has been preferred under Sections 93 and 95 of the Civii Procedure Code [Cap. 33 r.e. 2019]. It is supported by an affidavit sworn by the applicant. It IS on record that on the 8«^ November, 2018 the appiicant appiied and was granted an extension of time by this Court (De Mello, J.) but, due to some reasons which will be revealed shortly, the time within which he had to exercise his remedy expired even befo|§aid.properiy file the same. — \v For better appreciation of the factual^sfe^ ^ise to this application, I find it apposite to give a )of the matter. The story is like this; befor^efDisti^^ai^^^ Housing Tribunai for Morogoro District at Morog^(We^DLHT); the respondent herein. Bertha John Gita Acting(|i>the\^^inj^trix of the estate of her deceased sister Josepha^^Gita>,^successfully sued the applicant, Laurent Martin Mp^^^^qapp|i(iation fiied and registered as Land Application No. 44 specific performance of a contract for the saie jOf-ianded^propeil^ described as Riot No. 343, Block J, Kihonda applicant and the deceased. It is on record that ^^®^^°'^^'J|:::5Pecifically sought the triai tribunai to compel the applicant^o ^pay Tanzanian Shillings 1,727,000/= being payment of stamp duty and capitai gain tax on his saie on the suit property to the deceased so as to allow for the title to the said property to be transferred to and registered as part of the deceased's estate. In addition, the respondent prayed for an award of Tanzanian Shillings 500,000/= as punitive damages against the appiicant for his refusal to pay the taxes something caused inconvenience to the respondent. Page 2 of 11 In her final verdict, the DLHT entered judgment for the applicant, Laurent Martin Mpeka and declared that; One, it restored the parties to the sale agreement to their respective original positions before entered into that agreement. Two; it gave an order to the effect that down payment of Tanzanian Shillings 10,000,000/= be recouped by the respondent from monthly rent collected from letting the suit property at the rate of Tanzanian Shillings 260,000/= for five yearsFand Thirdly; the suit property be placed in possession of the applicaqt an^that the prayers by the appellant for damages were dismissed The respondent was unhappy with tedecisior^f^the DHLT and therefore she preferred an appeal b^oW tll'i^GojJ Land Division (Ndika, J. (As he then was)), registere^a^L^ Appeal No. 99 of 2014 aiming to explain her gr^nce^^AtJhe end of trial, the Court - Land Division allowed th|=ap^aran^et aside the trial tribunal's judgement and decree^^^^urtsentered judgment for the respondent to the effect tha^h^p^caW had to pay Tanzanian Shillings 1,727,000/= as stam^,^^and>capital gain tax and facilitate transfer of the rightofeoccupa^cy over,the suit property to the deceased's estate. <Aggri|ve^^t|ie decision of this Court - Land Division in Land Appea^^g9'of 2014, the applicant appears to lost direction as a result he b^gan filing different applications or cases before the court or different platforms seeking for various redress as indicated in his sworn affidavit and the written submissions in opposition. He kept on endeavouring on trial and error blindly for about seven (7) years now whereby not less than five applications have been instituted before the Court without success except one. Indeed, he pursued by himself, but all actions he made to file his applications or cases from 2018 to 9^^ Page 3 of 11 June, 2021 were found to be incompetent and ended on being struck out by the Court. As indicated above, the fruitful application was Misc. Land Application No. 988 of 2017 dealt by this Court(De Mello, J.) where the applicant applied for the following orders: 1. Extension of time within which to lodge notice of appealP^N 2. Extension of time to file an application for ieav^toJppeal^ainst the ruling of this court(Ndika, J., As he then was)^^^^^he.9^)day of November, 2016, and v y ^ 3. Leave to appeal to the Court of Appe^ubj^^o^ar^ng of the first two prayers and any other relief^the riWwould^ just to grant. Upon hearing the matter, tlte-couit^i^^^^ hesitate to grant the applicant's application to t^e^ciha^^^ the applicant had to file Notice of Appeal out o|dme wlth^thirty (30) days from the date of ruling (08/ll/2018^nd^T^:;^^appllcant had to file an application for leave to appeal tOvt^-^rfcof Appeal within fourteen (14) days from the date,t^ rulln^as delivered. However, the applicant did not utilize such an opportunity as alluded to above, hence Instant application. Whe^hV^stant application was called on for hearing, parties agreed to dispose^v^the matter by way of written submissions. Ms. Josephine Boniphace, learned advocate entered appearance for the respondent, whereas the applicant appeared in person, unrepresented. The applicant submitted at lengthy referring to what he stated in his affidavit sworn by him. He submitted that a journey began vide a case registered as Land Appeal No. 99 of 2014, filed at the High Court of Page 4 of 11 Tanzania (supra) wherein the applicant was the respondent whose judgment was delivered in favour of the respondent on 28«^ April, 2016 Upon being aggrieved by such decision the applicant filed an application No. 324 of 2016 seeking leave to appeal to the Court of Appeal of Tanzania. As this application was erroneously filed before the court, was struck out on the ground that the applicant filed one by way of second bite to before the Court of Appeal. He further filed Mis&Application No. 988 of 2017 seeking for an extension of time withiLh&to file a Notice of Appeal against the ruling and order of tfiis^o'S^jwte was delivered by my brother Hon. Ndika, J., (ilh^g^ajTon 9"^ November, 2016 of which the same was ^ted^by this^^urt on the 8^^ November, 2018 before Hon. De was). He was given an extension of thirty(30t4s to|^^rly4erc his right. To comply with the order ^of.,^e. 4^^^filed Misc. Land Case Application No. 815^f^l8jjb<^ain it was struck out by this Court (Kakolaki, J^itfkl^|^^>o refile due to wrong citation of the law. That was on th^20^^Deeember, 2020. In a bjipo pursu^his right, he refiled his application seeking for leave to app^^^the Court of Appeal of Tanzania before this Court where the mat^^ras^gj^red and marked Misc. Land Application No. 731 of 2019. Si^e it, was an omnibus application, it was struck out, hence instant application. On the basis of the above explanations, the applicant submitted that the reasons for delay were actually beyond his control. He highlighted that though he kept promptly applying for extension of time, lodging the relevant notices and leave to appeal within time, but all actions were made either using a wrong move or sometimes he knocked the wrong Page 5 of 11 platforms while having good faith and clean intention to pursue his right to appeal. He therefore, asked this Court to invoke the provisions of the law under sections 93 and 95 of the Civil Procedure Code [Cap. 33 R.E. 2021](the CPC) to enlarge the extended time. He further emphasized that under section 93 of the CPC the Court is empowered from time to time, to enlarge such period even though the period originally fixed or granted may have expired. To bolster his argument, he dKdsthe case of Steven Ngolola (Legal Representative of Charlll l^Iola) v. Posian Mkwama, Misc. Land Appi. No. O^o^wSfiich.^t the parameters for exercising discretionary powe((>t^'S^r^^shrined under section 93 of the CPC. On her part, the respondent ^^^Ms^sephine Boniphace, learned advocate referred to(^>^sp^^n^^^ counter affidavit and bitterly opposed to what/tp^amjicant^bmitted. In her reply to the applicant's written subteion ir^chi^f, the learned advocate averred that the applicant<fi^^bou^er(S) applications, but all found without merits. As regards to iri^p|application, the learned advocate submitted that upoirpassing^hrougfethe applicant's application could not find any suffici^xreasons to convince this court to grant the orders sought. She adaed^pon^dika, J., (As he then was) viewed that the proposed grounds^f appeal didn't suggest if there was an arguable appeal. Moreover, there is no issue(s) or a question of general importance to be considered by the Supreme Court of our Land because what have been alleged by the applicant, already have been dealt by this Court vide Land Appeal No. 99 of 2014. In her view, this application is baseless and hopeless in the eyes of the law. Page 6 of 11 She contended that the applicant has been filing endless applications based on the same cause due to his failure to take proper care over the matters he filed before this Court. She underscored that the applicant was duty bound to account for each and every day so delayed as per the decision of R. v. Yona Kaponda and 9 Others[1985]TLR,84. She further cited the case of Ngao Godwin Losero v. Julius Mwarabu, Civil Application No. 10 of 2015, CAT Arushaphd Mbogo & Another v. Shah (1968) EA 93 to cement her submi|si^that the applicant has not attained the legal requirements^si§i(i^J^g^^ for delay. His ignorance of the law cannot iustifv reasons for delay. I have impassively considered the'^Mp^^iCT|on,^ rival submissions of and the relevant provision^of^^d cited by both parties in their respective written submissfen^Be^rcJeaiing with the substance of this application, I find^aoposite Prefer to the provisions of the law cited by the appli^^n^^ectlons 93 and 95 of the CPC, the law provides that: ^ "'Where any period isfixed or granted by the courtfor the^^dJo^^fany act prescribed or allowed by this Code, the court iMy,'\^itsl discretion, from time to time, enlarge such pert^ "thoHfifh the period originally fixed or granted may have expired."[Emphasis supplied]. Under section 95, the law says that: "Section 95 - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make Page 7 of 11 such orders as may be necessaryfor the ends ofJustice or to prevent abuse ofthe process ofthe court."[Emphasis supplied]. From the above provisions of the iaw, the major issue for consideration IS whether or not the applicant has shown good cause to warrant this court enlarge time within which to exercise the remedy granted to him by this Court(De Meiio, J., As she then was). In principle, I incline to agree with the iearned_a£^for the respondent that, it is a trite principle of iaw that e^e§)^f.tirn^ is the discretionary powers of the Court and the samS^^^^^i^asised to be exercised judiciously. On the other M^d,the d.!^^S\he applicant is to disclose sufficient reasons for each^dela^^be^t reason is that the applicant should not be count^L th^^^ delay. In addition, the court in exercising^^^nai^powers, must take into consideration ail relevant need to arrive to a final and conclusive verdict df^th^^rtroversy by the superior court. In this application,'t^'the duty of the applicant to disclose sufficient reasons each delay and should not be mottled as the source of deiay.^&^ records tells, the applicant has demonstrated and exhibited reasons for delay in paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and ll^esp^ctiveiy. In my opinion, these are sufficient cause to persuade this Court exercise its discretion to enlarge the such a period sought by the applicant even though the period which was originaiiy fixed or granted by this Court already had been expired. The way I construe this application is that, the same has been filed to revive the extension of time which was granted by the court within which he failed to exercise his remedy within the prescribed time. I agree that the Page 8 of 11 principles laid down in the case of Steven Ngolola (Legal Representative of Charles Ngolola) v. Posian Mkwama (Supra) is usefui in the circumstance of this case as it estabiishes the determinant factors and set the parameters for exercising discretion of the court cherished under section 93 of the CPC. In my view, the most important thing to be considered hy the court is the merits of the appiication, the reasons advanced bf^:Napplicant explaining why he failed to encounter the limitafidft^peFiod ^^en for taking the necessary action so required. The s^al^i^Siuse may aiso be established if the applicant will be^abte to siiSi^that such an application for extension of time wa^oj;^ia^s b^e^rojr^ht promptly and that in so doing, he acted diligentiy.S Now the question that a^M^abpie observations is, has the applicant managed to ^^^ce ^ffiei^reasons why he failed to meet the limitation perip^iv%n^|m|nd whether the applicant has been taking reasonabie^st^^^^p^r^e his case. It was Ms. Josephine's contentii^that tl^ apRl|ant's ignorance of the iegai procedures to move^pr^erly the-court it has never been featured as good cause for ex^sion^f^i^for leave to appeal out of time. She further submitted that tt^pp|cant has not been acting diligentiy to exercise aii the opportunities that have been given to him, and therefore has nothing to offer as an excuse for sloppiness. With due respect to the learned advocate, the applicant has at least demonstrated and exhibited good cause by explaining the reasons why he deiayed to fiie such applications and aii the time had been promptiy filing the aforementioned applications for extension of time and acted Page 9 of 11 diligently. In my considered opinion, suffice to say that non-stop endeavours to access what the applicant believes to be his rights, portrays his diligence. I have in mind that the applicant is a layperson who had been trying and attempting to file his applications, but in vain. And stiii is having the same spirit and clean intention to exercise his right to appeal. If the applicant will not be granted enlargement of time as prayed, it will be like a ciawback fix which would not bpcoqnpatible to substantive justice as stipulated by the law under secdokCsA a^and (2) of the Civil Procedure Code [Cap. 33 R.E. 2019]._ Before pen off, I further had an opportQni^o^^thedecision in the case of Elibariki Asseri Nnk^Vshif^^VMushi & Lewanga Kinando,(1998) TLR, 81 in line wtt^hespr^G^sro of the law under Section 21(2)of the Law of Li^^fi^^[^ap.89 R.E. 2019]as it was cited in the case betweenpfe^^pfcant^ahef^respondent in Misc. Land Application No. 988 of^. Fr^nkp^^^ the applicant is entitled to be granted witl^Vpraye'rs-Mught for one reason that he has managed to exhibit thevireason^for delay Fro^^ foregoing observations, and upon considering the nature the matter at hand, I am satisfied that the applicant has rn^'ge^td'-estabiish sufficient cause to warrant me exercise my discretions^ enlarge time on the strength of sections 93 and 95 of the Civil Procedure Code [Cap. 33 R.E. 2019]. In the result, I thus hereby order and direct that; (l)The applicant to file Notice of Appeal Out of time within thirty (30) days from the day of this Ruling. Page 10 of 11 (2)The applicant to file Application for Leave to Appeal to the Court of Appeal of Tanzania within fourteen (14) days from the date of this Ruling. (3)Each party to bear its own costs. Order accordingly. dated at MOROGORO this^ay of November,2021 M. J:CHABA JUDGE 29/11/2021 This ruling delivered at my hand and Seal of the Court at Morogoro this 29"^ day of November, 2021 in Chamber's in the presence of both the Applicant and Respondent who appeared in persons, unrepresented. M. J. CHABA JUDGE 0^ 7: cO 29/11/2021. 'V ■F or > X v- f Appeal to the parties fully explained, M. J. GHABA JUDGE 29/11/2021. Page 11 of 11